Volume 41 — New Jersey Equity Reports

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Bill for construction of will and directions as to distribution of estate.</p>

<p>A testator gave to his wife all his estate, “ to her, her heirs and assigns forever,” adding “ in trust, nevertheless, that she shall only have and hold the same for her benefit during her natural life as trustee for my child or children, and, in case of her death, then all shall go to my child or children; * * * and this trust is to be continued, if necessary, to her executors or administrators.” The testator left one child, a minor, and left real estate. — Held, that the devise to the widow was in fee, in trust for her own benefit for life, with remainder to the child; that whether she had the power to s.ell the lands depends on the necessities of the trust, and that any purchaser thereof from her would take the lands with notice of the trust.</p>

<p>A receiver appointed under the act respecting executions (Rev. p. S9S) filed a bill to set aside as fraudulent certain assignments of mortgages made by the execution debtor to his son and daughter after he had incurred complainant’s debt, but before the judgment and execution thereon had .been obtained. The bill also prayed a discovery as to the debtor’s property, and as to his insolvency. On demurrer — Held, that the receiver could maintain the suit to set aside the assignments, if fraudulent, and to discover the debtor’s property which is concealed, and that the inquiry as to his insolvency is pertinent to the question of fraud in his conduct.</p>

<p>A court of equity will not, on a bill for specific performance, compel a building and loan association to lend money to one of its members who has bid off such loan at an auction thereof, where the title to the lands offered by such member as security therefor, by way of mortgage, is pronounced by the association’s solicitor to be defective, and the directors, for that reason, decline to make the loan.</p>

<p>1. Defendants laid out a large tract of laud in lots, and made a map thereof, exhibiting a plot marked “ Camp-Ground,” whereon, from time to time, camp-meetings and other religious assemblages were held. The object of the enterprise of the association (which was of a religious character, and under the auspices of the Methodist denomination), was to furnish to religions people a place of summer resort and residence, where they could have religious advantages arid be surrounded by religious influences. The plot contained a large building in the centre, called ‘‘ The Auditorium,” where the most of the meetings convened. The complainant bought a lot fronting this plot. Different parts of the plot were annually leased by defendants to persons attending camp-meetings, who erected tents thereon, to live in, which remained during the summer and were then removed. — Held, that the court would not, at complainant’s instance, restrain defendants from leasing any part of the plot to persons to erect thereon small cottages for greater convenience and comfort while attending the camp meetings; and that complainant is entitled to no advantage from a map, whereon the plot is marked “ Park,” which map was made and filed after he bought his property.</p> <p>2. If land be dedicated to the public for a special use, and the erection of buildings thereon will the better adapt the premises to such particular use, the erection of the buildings would be no injury to adjacent property-owners, for which they would be entitled to any redress or against which they would be entitled to relief.</p>

<p>A creditor’s bill alleged that a certain mortgage given by the debtor to A and B was fraudulent, and was said to have been given to them as sureties on the debtor’s bond as guardian, and the bill prayed discovery as to the condition of the ward’s estate &c., and for an injunction to prevent the debtor from wasting his ward’s estate or appropriating it to his own use, and for an accounting thereof from time to time, and also for discovery as to his insolvency.— Held, (1) that, as complainants were entitled to a discovery as to the consideration of the mortgage, they were also entitled to the discovery in the other particulars sought, as incidental thereto ; (2) that they were entitled to a discovery as to the debtor’s insolvency, because his answer thereto may obviate any proof on that point; (3) that some defendants, who are alleged to be partioipanls in the fraud and are therefore proper parties, cannot demur for multifariousness, or because they are called upon to discover transactions in the fraud done by other defendants.</p>

Bill for injunction. On order to show cause. On bill and affidavits annexed, answer of the company and affidavits on the part of the defendant.

<p>Bill for construction of will. •</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>The remedy of a widow against the estate of her late husband, to recover moneys alleged to have been her separate property, given by her to him. on an express trust to invest and hold the same for her benefit, but which he is said to have invested in his own name and converted to his own use, and which have been appraised as a part of his estate, is in equity alone.</p>

<p>Bill for account &e. On exceptions on both sides to master’s report.</p>

<p>Bill for construction of will. On final hearing on pleadings and proofs.</p>

<p>A testatrix, who died in 1863, devised a lot of land to her executors to sell, and divide the proceeds among A, B, C and D. The testatrix’s title to the lot being disputed, the power of sale was not executed for several years, and meanwhile, since 1873, the taxes on the lot had accumulated, and were not paid by the executors for want of funds, although they had received the profits from the lot. — Held, that A, B, O and D were liable for the unpaid taxes, and not the estate.</p>

<p>The rule that one who conceals a fact material to the transaction, which is •within his knowledge and which it is his duty to disclose, is guilty of actual fraud, applied to a transaction in which a mortgage was clandestinely put upon part of mortgaged premises by the defendant, between the time when he had agreed to convey the mortgaged premises to complainant in satisfaction of his mortgage thereon and the actual transfer, the existence of such'new mortgage being concealed from complainant. The deed to the complainant was, by the decree, set aside, and his mortgage, though canceled, re-instated.</p>

<p>1. A rule to bar creditors will protect the executors of the surety of a mortgagor, and the administrators of his deceased widow, to whom he had devised lands for her lifetime or widowhood, from liability for a decree of deficiency, after the foreclosure of the mortgage; and a discharge in bankruptcy will protect a grantee of part of the mortgaged premises-, who personally assumed the payment of the mortgage as part of the consideration of his conveyance.</p> <p>2. Where a son acted as the agent of his father in negotiating a loan by the latter on .bond and mortgage, and, with his knowledge and consent, received ■a bonus therefor from the mortgagor, his alleged services consisting in inducing his father to make the loan, the father is chargeable with the bonus as ■usury.</p>

<p>Bill for discovery and relief. On final hearing on pleadings and proofs.</p>

<p>Bill for relief &c. On final hearing on pleadings and proofs.</p>

<p>Bill for relief. On petition of Thomas M. Moore and John Reynolds, trustees, for construction of will and for directions.</p>

<p>Bill for specific performance. On final hearing on bill and answer!</p>

<p>A testator directed his executors to secure at interest one-eleventh of his estate, and to pay the interest thereon yearly to his son Robert during his natural life, and, at his decease, to pay the principal sum to his lawful heirs, share and share alike. — Held, that Robert took a life interest in the fund, and his children a vested remainder.</p>

<p>A mortgagee who has no knowledge of or connection with a bargain between his agent and the mortgagor, whereby the latter agrees to pay the agent a bonus for the loan on the mortgage, which the mortgagor testifies he paid to the agent out of the loan, is not chargeable therewith.</p>

<p>1. A testator provided that his “ entire estate be and remain as it now is, * * * including the furniture &c.,” to be occupied by his wife during her lifetime, and he also gave her an annuity. By the next section of the will, he provided that at her death his homestead, including the'furniture &c., should be used by his three daughters while unmarried.— Held, that, obviously, the word “homestead” had been accidentally omitted from the gift to the wife; and that she is entitled to its use; that the term “furniture” embraces everything about the house that had been usually enjoyed therewith, and that the-gift to the wife was in lieu of dower, and that she was not entitled to the $200 exemption.</p> <p>2. Besides the use of his homestead, furniture &c., he gave to three of his daughters the income of $5,000 for their support in keeping it, and when it (the homestead) should no longer be used by them, he gave the homestead “ to such child or children at that time living, and their heirs and assigns forever.”— Held, that the latter gift was a contingent legacy to all of testator’s children, his sons as well as his daughters, who should be living when the daughters ceased to reside in the homestead; that the devise to the daughters required them to occupy the homestead themselves; that the gift of the $5,000 to them was not absolute, but the use of it synchronous with their occupation of the homestead, and so also as to their interest in the furniture.</p>

<p>Lands were devised on condition that the devisee support the testator’s grandson Benjamin during iris natural life. The complainant, alleging that after the devisee’s death she furnished Benjamin with support Ac., and recovered a judgment at law therefor, filed her bill for a decree declaring the judgment a lien upon the property, and directing that the property be sold to pay it. — Held, that the suit could not be maintained; that the bill could not be sustained, as a creditor’s bill, to subject to payment of her judgment the lands devised in the hands of the devisee’s heirs-at-law, because the trust did not proceed from the judgment debtor; and that the complainant did not show herself entitled to equitable subrogation.</p>

<p>Bill to quiet title. On final hearing on pleadings and proofs.</p>

<p>Bill to quiet title. On general demurrer.</p>

<p>Bill for relief. On general demurrer.</p>

<p>The rule that equity sees through disguises, and deals with the substance rather than with the form, applied to a suit brought by a sister holding a responsible and trusted position in her brother’s family, against that brother and one B., who had been for years his confidential clerk &c., to annul a transfer of certain lots of land on an island and some shares of stock, made by the brother to B. as compensation for his obtaining the titles of the several owners of the island, which the complainant claims was done for her benefit, but which the evidence shows was, in fact, for her brother’s, and-the transfer was sustained upon the ground that the enterprise was not, in reality, complainant's, but her brother’s ; and, further, that even if it had been hers, she had, by writing, authorized her brother to obtain these titles, and he, in turn, had employed B., who did obtain them, and his compensation therefor, represented by the transfer now assailed by complainant, seems not undue.</p>

<p>Bill for construction of will. On final hearing on bill and answer.</p>

<p>A defendant made application for leave to file a bill of review six years after the final decree was entered against him. The application was based upon the ground that he had material evidence to present in his defence, which he did not present during the progress of the suit because of his want of knowledge of the existence of the suit, of which he alleged he knew nothing until October, 1885, more than five years after the making of the decree. He was a nonresident. There was a decree pro confesso regularly taken against him, and a writ of injunction w.as served upon him in the beginning of the suit, in which writ the existence of the suit was stated, and' that he was a party defendant thereto. — Held, that the application must be denied for want of merits.</p>

<p>Bill for relief. On general demurrer.</p>

<p>Suit for divorce. On petition for reduction of alimony, and master’s report thereon and exceptions thereto.</p>

<p>L., a judgment creditor of D., an alleged heir of a former owner of lands, in his answer and cross-bill to a bill for foreclosure of a mortgage prior to his judgment, attacked the several conveyances of the premises since D’s ownership, on the ground of fraud; he also attacked two subsequent mortgages thereon for fraud. Answers were filed to his cross-bill, and he excepted thereto. — Held, that his exceptions were defective in making a general objection to the answers, which were clearly good in part; and also his objection that defendant does not answer according to the best of his information, remembrance and belief in instances where he may not have had actual knowledge was too general; that his own interrogatory, “ Whether the statements set forth in the cross-bill are not substantially true, and if not, what part of said statements is true ?” need not be answered. — Held, further, that L.’s judgment could not be assailed by a mortgagee who does not claim under or represent D.</p>

<p>Bill for an account &e. On plea of statute of limitations by defendant Finney.</p>

<p>1. Under an injunction bond, with condition that the complainant shall pay such damages as the defendant shall sustain by reason of the injunction, in easfe' it is finally decided that the complainant was not equitably entitled to the injunction, a defendant is entitled to recover a reasonable amount of counsel fees necessarily expended in getting rid of the injunction.</p> <p>2. But under such a bond a defendant is not entitled to recover compensation for the time and service he may have devoted to the case, nor to compensation for the mental strain and anxiety he may have suffered in consequence of the injunction.</p>

<p>1. Lord Bacon’s ordinance, declaring that all suits under the value of ¿E10 shall be dismissed, is in force in this state.</p> <p>2. In order to justify a dismissal on the ground that the matter in dispute is beneath the jurisdiction of the court, the matter in dispute must be less than $50.</p> <p>3. A defendant may avail himself of the objection that the matter in dispute is too trivial to justify the court in entertaining the suit, either by demurrer or by motion on notice.</p>

On petition of Edward W. Vanderbilt and Edward M. Hopkins, and answer by Henry S. Little, receiver, and replication by petitioners, and proofs taken in open court.

<p>1. A principal may lawfully indemnify his surety against loss in consequence of his suretyship.</p> <p>2. A debtor has a right to prefer one or more of his creditors over the others, and so long as he exercises this right honestly his acts, whether the preference-be created by sale or pledge, are unimpeachable.</p> <p>3. A provision in a contract, providing that if the contractor fails to pay the debts he incurs in performing the contract, the other contracting party shall, on the presentation of such debts to them, have the right to withhold any moneys earned under the contract until such debts are paid, does not operate as an equitable assignment of the moneys earned under the contract, nor-prevent the contractor, prior to the presentation of such debts, from making a valid assignment of the moneys.</p> <p>4. So long as a sheriff's sale stands, the price which the purchaser agreed to pay and the sheriff to accept must be taken as a conclusive test of the value-of the thing sold.</p>

<p>On application for leave to file a supplemental answer. Heard on notice and ex parte affidavits.</p>

<p>1. Whenever a husband commits a matrimonial offence which entitles his-wife to a divorce, he does that which justifies his wife in leaving him.</p> <p>2. A wife is not obliged to stay under her husband’s roof with his prostitute, and if she leaves his house for that reason, and he refuses to support her, she is entitled to a decree against him for alimony under the twentieth section, of the statute concerning divorces.</p>

<p>1. A plea in equity, in order to constitute a bar to the complaiant’s whole right of action, must aver every fact essential to make out a complete defence.</p> <p>2. A decree adjudging a person a bankrupt is conclusive as to the fact adjudged, and cannot be impeached collaterally.</p> <p>3. The fact that an assignee in bankruptcy has not recovered the property assigned, or realized its money value, within the time limited by the bankrupt law, does not give the bankrupt or his creditors a right to recover the property.</p>

<p>1. All the fuels essential to show the complainant’s right to relief must be averred in his bill with certainty and clearness, and positively.</p> <p>2. Any writing or act which clearly indícales that the assignor intends to make over a fund belonging to him, amounts, in equity, to an assignment of the fund.</p> <p>3. At law an order drawn by a creditor on his debtor, in favor of a third person, will not give the third person a right of action against the debtor unless he accepts the order, but equity will treat an unaccepted order as a valid assignment of the debt, if the order has the support of a valuable consideration, but hot if it is without such support.</p> <p>4. In contests respecting property held in trust, where the interests of the cestuis que trust stand opposed to the right set up by the complainant, the cestuis que trust are necessary parties.</p>

<p>On final hearing on petition and answer, and proofs taken in open court.</p>

<p>Money which became due to a party under a contract during the progress of a suit in this court was ordered paid into court to await the further order of the court — Held, that the party in whose behalf such money was paid has such a right or interest therein as may be attached.</p>

<p>The complainant in a foreclosure suit had the sheriff’s sale thereunder set aside for a mistake in the boundaries, and the premises ordered to be resold. The day before the second sale he had the premises surveyed, and at the sale bought a part thereof and petitioner another part. The sale was duly confirmed and deeds given to the respective purchasers, the description in that of the petitioner clearly including a farm-house. — Held, on the petitioner’s application for a writ of assistance to obtain possession of the farm-house, which was occupied by a third party, that complainant was estopped from asserting that the farm-house was not embraced in petitioner’s deed.</p>

<p>1. The testator said, “Second, I, give, devise and bequeath unto my beloved wife, Caroline Morgan, all of my hsusehold goods and furniture, also onetliird of the income or interest of my estate during her widowhood, in lieu of' dower.” — Held, that the widow took only an interest in the goods and furniture during her widowhood.</p> <p>2. The widow died while the rent was accruing and before it became due. —Held, that the rent, should be apportioned.</p>

<p>A corporation, colorably organized under the statute, transacted business and incurred debts, on which judgments were recovered. After incurring those debts the corporation perfected its legal organization, and then gave certain mortgages on its property.— Held, that the judgments were entitled to preference in payment over the mortgages.</p>

<p>On bill for injunction and specific performance.</p>

<p>1. Tie pendency of a bill for the construction of a will is no objection to a defendant making application for the appointment of an executor according to the requirements of the will, before the question of construction is concluded.</p> <p>2. In such case, the will directing the surviving executors and the beneficiaries who are of age to make the appointment, the court will, upon their failing so to do, compel the appointment.</p> <p>3. In such case the court does not determine the necessity, but only the fact that the contingency named by the testator exists, and, such contingency appearing, will order the directions of the will to be carried out.</p> <p>4. The words “authorize and empower and request” in such case, being connected with the management of the estate, impose a duty.</p> <p>5. Every one required to join in the appointment is entitled to notice of the time and place, when and where the appointment will be made.</p>

<p>Under the statute (Rev. p. 771 $ 86) the time for filing exceptions to claims against an insolvent estate may be extended by the orphans court. After such an order had been granted it was revoked by the court as improvidently made. —Held, that an appeal from the latter order would not lie, because it was discretionary.</p>

<p>Appeal from decree of Sussex orphans court.</p>

<p>A testator, by his will, gave to his executors and the survivor of them one-fifth of the residue of his estate, in trust for the use and benefit of his son’s wife for life, and, after her death, it was to go to the children of his son and his wife. He directed the executors to retain his son’s indebtedness to him out of the share. There was a provision in the will for the manumission of a slave, and for her support out of the estate if she should become unable to support herself. Commissions were allowed to the executors upon the principal of the share of the residue given to the son’s wife for life, and upon the principal of the sum set apart by the executors for the support (by the income thereof) of the slave. After the slave’s death, the administrators of the executor who outlived the other, accounted for the principal of the share, and for the principal of the fund for the support of the slave.' — Held, that they were not entitled to receive commissions upon the funds; that the funds were in the hands of the executors, to be administered as executors; that the trust was inseparable from the executorship, and that, as the executors had received commissions thereon as executors, they were not, under the circumstances, entitled to commissions again as trustees.</p>

<p>1. A will drawn by the testator stated that it was signed by him and attested by the witnesses, in the city of New York, on June 18th, 1880. A doctress testified, on a caveat thereto, that site attended the testator every day but three (the 8th, 9th and 12th) in June, 1880, at his home, in Orange, New Jersey; that on June 18th she called on him there professionally, and that, he was then confined to his bed by rheumatism, and she also testified that she thought he was physically unable to go to New York on any day in June. She was partly corroborated by testator’s widow, and also by a female servant and a hired man. These witnesses testified to events four years after they occurred, and almost entirely from recollection. On the other hand, were the intrinsic evidence of the will and the direct testimony of the disinterested attesting witnesses, while there was, besides, plenary proof, both written and oral, that the testator was in New York on the 16th and 19th of June, and also on other days during that month. — Held, that the will should be established as having been executed in New York, on June 18th, 1880.</p> <p>2. That a testator changes some of his bequests in a subsequent will is no ground for questioning his capacity or its validity, or for refusing it probate, since he is not obliged to disclose his motives, or to explain the reasons for the changes, or even to mention them in his will.</p> <p>3. The orphans court, after admitting a will to probate, ordered that assets of the estate in the possession of persons in New York, who were before the court, one as proponent of another will of the testator, and the other as witness thereto, be handed over by them to the administrator with the will annexed. — Held, that the court had jurisdiction to make the order.</p>

<p>Appeal from decree of Monmouth orphans court.</p>

<p>A testator, who died in 1877, gave all his personal properly to his wife, and directed her and M., as his executors, to sell and convey all his real estate as soon as convenient, and at such time as would be for the best interest of the estate, and to divide the proceeds into two shares, one of which he gave to his wife, and the other to his executors, to apply to the support of his father, and, after his father’s death, to divide what remained among his nephews and nieces. Testator owned a farm and a tract of about fifty-one acres; the latter the executors sold according to the will, the other had been conveyed to testator in 1865 by his father, on condition that testator would provide him with a home thereon, and with support &c. Testator’s father survived him, and lived until 1883, and, with the widow, remained on the farm, refusing to release his claim thereon, and was maintained by the executors. After his death and the sale of the farm, which had been testator’s homestead — Held,</p> <p>(1) That the widow liad no ri^Sft to occupy it as a dowress, because the provisions of the will in her favor were inconsistent with her claim to occupy the homestead until her dower should have been assigned, and she would be presumed to have elected to accept those provisions in lieu of her dower.</p> <p>(2) That the executors, not having been able to dispose of the farm by reason of the father’s claim thereon, and his refusal to release it, are chargeable with one-half the amount of the value of its nse and occupation, and are to be credited with one-half the taxes and insurance of the premises, and are to be allowed the expense of the father’s maintenance.</p> <p>(3) That testator’s lieirs-at-law have no claim, as such, to the rents and profits between the death of testator and that of his father, but are entitled to an accounL of one-half of those rents and profits, and to have them applied towards the father’s support.</p> <p>(4) That two of the principal exceptions to the executor’s account having been correctly allowed by the orphans court, an order that the executors personally pay the costs thereof, and also a counsel fee to the exceptants, was not unjust, and should be affirmed.</p>

<p>1. The complainant, in a bill to foreclose a mortgage, agreed with a defendant, who had purchased the equity of redemption from the mortgagor, that if he, the defendant, should buy the land at the sheriff’s sale, he, the' complainant, would take a new mortgage for the amount of his decree. Accordingly, the land was struck off by the sheriff' to the complainant, who directed the sheriff to make his deed to the defendant — the latter giving the new mortgage to the complainant. The defendant never gave up the possession. — Held, that the complainant could not be charged with rents and profits, as a. mortgagee in possession, in favor of judgment creditors of the mortgagor, who had acquired a lien upon the equity of redemption subsequent to the original mortgage, but, inadvertently, had not been made defendants in the foreclosure.</p> <p>2. Persons having rights in said land superior to said complainant’s original mortgage and to said judgment, surrendered their rights to said owner of the equity of redemption, in order that the mortgage which he was to give to the complainant should become a superior lien, and in consideration that the owner of the equity should at once reconvey to them their rights subject to the complainant’s mortgage. — Held, that they did not thereby lose, in equity, their priority to the judgment.</p>

This nuisance, it is alleged, arises, from the use of the several tracks, in distributing cars when, loaded trains come in, and in making up loaded trains to go out from the main depot in the city.

<p>When creditors, holding a bond of their debtor, which contains a usurious agreement under the law of this state, and also other indebtedness of the same debtor unaffected by usury, receive payments from the debtor without direction as to their application, their right to appropriate such payments on their bond is limited to so much as was legally recoverable thereon, and their application of such payments in excess of that amount will not be sustained, but the excessive payments will be appropriated by the court to the debtor’s other indebtedness.</p>

B. Williams, Esq., advisory master, who filed the following conclusions : 1. Converse, for his company, agreed, on the evening of March 31st, 1885, to pledge the property in question to Woodruff. The attempt of Converse and Beers to explain away the action and papers of March 30th and 31st are opposed to probability, and, at any rate, cannot prevail against the written evidence. 2.

<p>Complainant’s father held a written agreement for the purchase of certain lands, and paid the vendor part of the purchase-money. He died before completing the purchase, and his estate was insufficient to do so. Two of his sons, Samuel and James, afterwards bought the property, and paid therefor, after repaying to their father’s estate the amount which"he had paid upon the consideration. Complainant and several of her brothers and sisters were then infants. — Held, (1) that complainant apd decedept’s other heirs-at-law were pot, in equity, tenants in common with Samuel and James in the property; (2) that the father’s equitable interest in the lands under his contract was not salable, under an order of the orphans court to pay his debts or the balance of the purchase-money due from him.</p>

<p>A wife, by her will, “ constituted” her husband and certain other designated ¡persons “ heirs to my entire estate * * * in such manner, however, that my dear husband, during his lifetime and so long as he pleases, shall be and remain in quiet and undisturbed possession and enjoyment of my entire estate, and may perfectly, freely and without control, do with and dispose of the same without rendering an inventory ” &c. — Held, that the husband took thereunder a life estate in testatrix’s lands, with a power to convey the fee.</p>

<p>A husband, by his will, provided as follows : “ I give and bequeath all my property, both real and personal, * x x to my wife, Elizabeth, to use or dispose of in any manner that she may think proper during her lifetime, and at her death may by Will dispose of the same between my children and grandchildren as she may think proper.” — Held, that her interest in the property so given was a life estate, with a discretionary power of testamentary disposition among testator’s children and grandchildren, but without power to entirely exclude any of them.</p>

<p>Creditors’ bill. On general demurrer.</p>

<p>An executor was directed by tbe will, in case the personal property was insufficient, to sell his testatrix’s lands in order to pay tbe general legacies, and the residue, if any, was given to A, B and C. He rented and received the rents of part of the lands for two years, and then sold all the lands at what he deemed a fair price, which he could not obtain sooner. The personal property and the proceeds of the sale of the lands were together insufficient to pay the general legacies in full. — JBeld, that the general legatees were entitled to have the rents applied to the payment of their legacies in preference to either, the residuary legatees or the heirs-at-law.</p>

<p>The common law right of survivorship among joint tenants of lands has not been abolished in this state by statute, and therefore, on a bill for specific performance of a contract to convey lands, it is not a valid objection to the title that the wives of complainants’ grantors, who were joint tenants, did not join in their deed to complainants for the premises.</p>

<p>Bill for relief. On motion to dismiss bill &c.</p>

<p>Bill for partition. On exceptions to master’s report.</p>

<p>Bill to rectify deed of assignment. On motion to strike out, .so far as the complainant is concerned, so much of the answer of Matthew Armstrong as is by way of cross-bill.</p>

<p>The rule that the court may, in its discretion, retain an injunction until final hearing, notwithstanding the denial, in the answer, of the facts on which the equity of the bill rests, applied to a case where the property is in litigation in this court in another suit between complainants and one of the defendants in this suit, and the former allege that the latter is colluding with ¡another defendant herein to evict them from the possession of the premises by means of a tax title and an ejectment suit thereon brought by such codefendant, wherein he has obtained a judgment which complainants have moved to «et aside.</p>

<p>Motion for leave to file supplemental answer. On petition and answer.</p>

<p>On motion to set aside inquisition.</p>

<p>Bill for relief. On final hearing upon pleadings and proofs.</p>

<p>Bill for construction of will. On final hearing upon bill and answer.</p>

<p>Petition for divorce. On petition for rehearing.</p>

<p>1. A complainant is bound to exercise reasonable diligence in the prosecution of his suit, and if he fails for a year after filing his bill to bring the defendant into court, his laches may be regarded as an abandonment of his suit, •and his hill may, for that reason, be dismissed.</p> <p>2. The entry of an appearance for a defendant carries with it a presumption that it was entered by his authority, and if the contrary be alleged, the defendant, in order to oust the jurisdiction of the court, must show affirmatively that it was entered without his authority.</p>

<p>On final hearing on bill and answer and proofs taken in open, court.</p>

<p>On final hearing on bill and answer, and proofs taken in open court.</p>

<p>On motion to dismiss cross-bill, heard on notice given under Fo. 215 of the rules.</p>

<p>On motion to strike out part of the defendant’s answer, heard, on notice given pursuant to No. 215 of the rules.</p>

<p>1. After a mill owner has acquired, by prescription, an easement of flowage» no cessation in the use of it will extinguish it unless the cessation be continued uninterruptedly for the full period of twenty years, or the cessation be commenced or continued under such circumstances as to evince unmistakably an intention by the mill owner to abandon his right, and as shall also render a subsequent resumption of it by him clearly inequitable to the owner of the servient tenement.</p> <p>2. A dam can only produce its full effect on the stream above when the pond is full, and therefore the evidence of witnesses, in a flowage suit, who attempt to give the usual state of the water in the pond or in the stream above from observation, but who have made their observations without knowing, at the time they were made, whether the pond was full or not, is entitled to very little consideration.</p>

<p>1. To justify a finding that adultery is proved, the court should be satisfied that the witnesses swearing to the facts showing guilt are honest, that they are not mistaken, and that their testimony is true.</p> <p>2. A judge is not bound to believe a thing merely because a witness swears to it, but he should test the evidence as other men of discernment would test it, believing what he is convinced is true, and discarding what he is convinced is false.</p>

<p>1. A prior mortgagee, who has had possession of the mortgaged premises, must account for rents and profits to the subsequent encumbrancer, but a subsequent encumbrancer in possession is not bound to account to the prior encumbrancer.'</p> <p>2. A mortgage which does not by its terms pledge the rents and profits of the mortgaged premises for the payment of the mortgage debt, gives the mortgagee no lien on them, and the mortgagor may take them or assign them without liability to account to the mortgagee for them.</p> <p>3. Under the rule now in force, a prior encumbrancer has a right, as against the mortgagor and subsequent encumbrancers, in case his security is precarious, to have the rents of the mortgaged premises, accruing subsequent to the appointment of a receiver, sequestered for his benefit.</p> <p>4. Taking possession of the mortgaged premises is a means to which a mortgagee may resort to obtain payment of his debt, and a payment obtained in this way is subject, in respect to its appropriation, to the legal rules governing the appropriation of other payments.</p> <p>5. A debtor who makes a payment to his creditor, to whom he owes two or more debts, has a right to direct to which debt the payment shall be applied ; if he simply hands the money over to his creditor, without direction as to its application, his creditor may apply the money as he pleases; and if neither party has exercised his right of appropriation, and a dispute subsequently arises, the court will make the appropriation, and in doing so will, as a general rule, apply the payment to the debt which is least secure.</p>

<p>1. The president of a manufacturing corporation is not entitled to the lien-given by the act for what he earns while serving the company as president.</p> <p>2. He is a member of the corporation as well as an officer, and therefore is-part of the head or force which employs, and cannot be both employer and employee, as the act now stands.</p> <p>3. To give a preference to the members of a corporation for sums claimed by them for services, would be against the true spirit of the act and against public policy.</p>

<p>The defendant re-insured all its risks, and had a large sum of money in the treasury, being the proceeds of cash payments by the then present and also past policy-holders, and the interest upon the investments thereof, which sum has been of about the same amount for several years. — Held, that all the policy-holders who contributed to such surplus are entitled to a proportion thereof according to the amount of their respective payments, whether they continued to be policy-holders at the period of distribution or not.</p>

<p>The court of appeals decreed that the defendants were entitled to the possession of a mine by reason of complainant’s breach of condition in his lease, adding “without prejudice to the inquiry, after the defendants have taken such possession, from matters arising since the bill was filed.” — Held, that complainant’s claim that he can now comply with the condition must be brought before the court by bill and not by petition, although defendants only insisted by their cross-bill that they were entitled to the possession merely on account of complainant’s breach of condition.</p>

<p>Bill for injunction. On final hearing.</p>

<p>On bill, answer and proofs.</p>

<p>1. A street was opened and dedicated to public use, after which one of the complainants purchased a portion of the land over which the street extended, taking a deed therefor •with full covenants of .warranty, and completely obstructed the street by making deep excavations for its road and by laying its tracks. — Held, that the complainants are estopped from claiming that any portion of the said street was dedicated.</p> <p>2. Afterwards, the surveyors made return of a public road over the same land, crossing the railroad of complainants, against the recording of which return the complainants filed a caveat, and prevailed; and then built a water-tank twelve feet in diameter about in the centre of the said proposed highway.— Held, that this, too, works an estoppel.</p> <p>3. Where part of an alleged way is over a private alley-way owned by two-in common, the court will not declare the existence of such alleged way unless both the owners of the private way are before the court.</p> <p>4. In such case the court would rather presume a license by the absent owner than to declare the use was adverse without his being heard.</p> <p>5. To establish a by-road from twenty years’ uninterrupted adverse enjoyment, there must be a certain well-defined line of travel in the same place over the entire route for all that time.</p>

<p>On bill, answer and proofs.</p>

<p>Pending a suit in this court by the owner of two mines for an accounting by their lessee, the complainant bought them, and then filed a bill against the lessee for an accounting as to one of the mines, after having issued an attachment at law for royalties alleged to be due from the lessee on account of the other mine. — Held, that the lessee might, by cross-bill, compel complainant to-come to an accounting as to both mines in this suit, and that in order to entitle him to enjoin the attachment proceeding, his averments must show that the attachment is still pending.</p>

<p>Appeal from order of Hudson orphans court. Upon state of the case.</p>

<p>An executor or administrator, ordered by the orphans court to sell lands to ■pay the decedent’s debts, may adjourn the sale, after it has been properly .advertised, by an attorney or agent.</p>

The Central Railroad Company of New Jersey was, by an order of the court of chancery, made on the 14th day of February, 1877, put in the hands of a receiver as an insolvent corporation. On May 4th, 1883, the company applied to the court for the discharge of the receivership, and the restoration of its property to its possession and control, and the dissolution of the injunction allowed as ancillary to the receivership.

Notice or knowledge, in this connection, does not mean that the maker of the paper must bring home to its holder actual knowledge of the infirmity which renders the paper valueless, but it will be sufficient if it is shown that he had the means of knowledge, that is, that he had notice of such facts as would have led a prudent man to further inquiry, which inquiry, if pursued, would have disclosed the infirmity of the paper. Hamilton v. Vought, 5 Vr. 187.

On petition filed by McEIroy to have a debt due to him from the firm of James Horner & Co. paid out of partnership assets in the hands of Kirkpatrick, receiver. The facts in this case are fully set out in the opinion of the vice-chancellor, reported in Buckingham v. Ludlum, 10 Stew. Eq. 137.

She allowed the accruing payments to fall in arrears. She also allowed the taxes and assessments to remain unpaid. The payments which she had made on the loans reduced the amount due from her to about $2,600. At this juncture she offered to assign and transfer so much of the stock as represented the payments which she had made to the corporation, and give a new mortgage for all the balance due on both properties.

<p>A testator made various bequests, expressed in dollars, and thereupon ■directed that the legacies should be paid by his executors to the legatees “ in notes or bonds and mortgages, transferred to them with their respective value at the time.” — Held, that the securities were to be transferred at their fair intrinsic value, and not at the amount due upon them.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Wilkinson v. Dodd, 13 Stew. Eq. 123.</p>

, secured by mortgage on all its property, and also received capital stock of said company to the amount of $225,000, and immediately transferred said bonds to his creditors; that in 1876 John Ryle was a member of the firm of John Ryle & Sons, and that at the end of that year that firm was insolvent; that during that year the firm borrowed the notes of said water company to the amount of about $80,000 and had endorsed them and delivered them to the creditors of the firm,…

<p>The défendant, a religious camp-meeting association, having laid out and mapped its seaside property into lots, reserving a tier of blocks, extending from the ocean westward, as a “ camp ground ” for religious services and tenting purposes, and- having sold to the complainant lots by this map fronting on the blocks so reserved, whereon he erected a summer residence — Held, that the association had thereby entered into an implied covenant with the complainant that these blocks should be devoted to the uses indicated, and that it had no right to divide these blocks into lots for the purpose of leasing them for a term of years with the privilege of erecting thereon permanent cottages.</p>

<p>A sale of lands under partition may be set aside, where no advertisement •was set up in the township where the lands lie, as required by statute, the buyer at such sale being repaid the purchase-money paid by him, with interest.</p>

The-complainant claims them under a bill of sale, and the defendants,. Diament, the First National Bank of Camden, and Benner, claim them under levies, upon executions issued upon confessed judgments. The dealings between the complainant and Hammell, which ripened into the bill of sale, will appear in the recitals hereafter.

<p>On appeal from a decree advised by Vice-Chancellor Van-Fleet, whose opinion is reported in Parker v. Hayes, 12 Stew. Eq. 469.</p>

This special direction is sought, because the directors of the corporation sold and transferred all of its assets to one of its officers and directors, after it had become insolvent. It is undisputed that at the time of this sale the insolvency was known to all the contracting parties. The consideration paid has all been applied to the payment of all the liabilities of the company, except the judgment of the complainants.

<p>The preference of one creditor of a corporation over other creditors, by means of a mortgage on corporate property is not now prohibited by law or objectionable in itself.</p>

The defendant Manning had authorized one Tintle to solicit purchasers for lots of land in a tract of one hundred acres or more. Tintle had procured persons to purchase. His authority was by parol. He never signed for Manning. He accepted offers and promised conveyances, but in all cases the negotiations rested until Manning made, executed and delivered a deed. It seems that a few sales of lots were effected in this manner.